# FILED May 13, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE,

AT NASHVILLE

_______________________________________________________ ) RICHARD EVERETT COLLINS , ) Coffee County Chancery Court ) No. 97-258 Plaintiff/Appella

nt. ) ) VS. ) C.A. No. 01A01-9808-CH-00433 ) RACHEL E. WILLIS , ) ) Defendant/Appellee. ) )

______________________________________________________________________________ From the Chancery Court of Coffee County at Manchester Honorable Jeffrey Stewart, Judge

A. Thomas Monceret , MONCERET & JOHNSON, Knoxville, Tennessee Attorney fo

r Plaintiff/Appell

ant.
H. Thomas Parsons, PARSONS & NICHOLS, Manchester, Tennessee Attorney for Defendant/Appellee.

OPINION FIL

ED: AFFIRMED AND

REMANDED FARMER, J. CRAWFORD, P.

J., W.S. : (Concurs) LILLARD, J. : (Concurs)RichardEverett Collins app eals an order of the divorce court valuing and distributing the parties’ marital property. Additionally, Rachel E. Willis argues that Mr. Collin s’ appeal is frivolous, thus entitling her to recover an award for attorney fees incurred in defending the appeal. For the reasons set fort

h below, we affir

m the ruling of the tr

ial court and deny

Ms. Willis’ request for attorney fe

es.
Procedural History

Mr. Collins and Ms. Willis were married in November of 1993 and resided together until their separation in June of 1997. In June of 1998, the trial court granted a divorce to the parties
on the stipulated grounds of irreconcilable differences, valued the par ties’ marital property, distrib uted the parties’ marital property, and allocated the parties’ marital debt. A final de cree o f divorce, which incorporated the court’s ruling, was entered in July of 1998. The court’s valuation and distribution of

the parties’ mar

ital property is sum

marized as follow

s:
Marital Property Value Party to Whom Property is Awarded Ford Trucks (2) $20,800.00 Mr. Collins Ford Car $10,000.00 Ms. Willis Home, 7 Acres $100,000.00 Ms. Willis Trailer and Tool

s $3,000.00 Mr. Collins Bedroom Suite $2,500.00 Mr. Collins Cracker Barrel Stock $150.00 Mr. Collins Household Items $750.00 Mr. Collins Household Items $1,500.00 Ms. Willis Ms. Willis’ 401(k) $10,500.00 Ms. Willis Boat and Computer $8,000.00 Mr. Collins Total $157,200.00 Value of Marital P

roperty Awarde

d to Mr. Collins: $35,200.00 Value of Marital P

roperty Awarde

d to Ms. Willis: $122,000.00
Additionally, the court’s rulin g with respect to the al location of the pa

rties’ marital de

bt is summarized as fo

llows:Encumbered Marital Property Amount of Debt Party by Whom Debt is Assumed Ford Trucks (2) $18,900.00 Mr. Collins Ford Car $14,000.00 Ms. Willis Home, 7 Acres $89,000.00 Ms. Willis Boat and Computer $5,500.00 Mr. Collins MBNA $6,000.00 Ms. Willis MasterCard $3,000.00 Ms. Willis Amoco $400.00 Ms. Willis Total $136,800.00 Total Marital Debt

Assumed by Mr. Colli

ns: $24,400.00 Total Marital Debt

Assumed by Ms. Willis: $112,400.00
Thus, pursuant to

the trial court’s ruling, Mr. Collins received marital property valued at $35,200.00 andassumed $24,400.0

0 of the marital de

bt. It follows, then, that the net value of the marital property distributed to Mr. Collins is $10,800.00. Ms. Willis received marital property valued at $122,000.00 and assumed $112,400.00 of the marital debt. Accordingly, the net value of the marital property distributed to Ms. Willis is $9,600.00.
Valuation of Marital Prop erty

Prior to the parties’ marriage, Ms. Willis purchased a n ew home for $94,000.00. Shortlythereafter, she discovered that the house was stru

cturally defective and in need of extensive repair. Consequently, Ms. Willis filed an action a gainst the builder

seeking $27,500.0

0 in damages. The lawsuit was settle

d for $20,000.00 a

nd, after costs a

nd atto rney fees were paid, Ms. Wi llis ultimately

received $13,000.00. She then placed approximately one-half of the settlement proceeds ($6,500.00) into aseparate bank account with the intention that the deposited funds would later be appliedtoward the expen ses of repair

ing the ho use. Mr. Collins is a self-employed general contractor. During the marria ge, Mr. Collins made

substantial improve

ments to the parties’ home, contributing his own labor as well as materials that otherwise wo

uld have been use

d in the course of his contracting business.1 Although the appraiser’s report was not admitted into evidence, it was marked as an

exhibit to Ms. Willis’ testimony for identification purposes only.

At trial, the parties disagreed regarding the f air mark et value of their home. According to Ms. Willis, she received a 1997 tax assessment notice indicating that the value of the house was “just under $100,000.00.” Approximately eight months prior to trial, the house was appraised. 1 Based in part on this appraisal, Ms. Wi

llis estimated that,

on th e date that the parties separated, the value of the house was approximately $100,000.00. She further testified, however, that its value on the date of trial was approximately $105,000.00 to $110,000.00. Ms. Willis then indicatedthat, if she decided to place the house on the market, she would list the property at $105,000.00 but would hope to sell it for $100,000.00. Mr. Collins denied that the fair market value of the parties’ home was $100,000. 00. Contrary to Ms. Willis’ estimate, M

r. Collins testified

that, at the time of trial, the home was worth approximately $144,500.00.

In its ruling, the tria

l court commented

that “the testimony

given by Ms. Willis is
more credible in light of all the circumstances as to the valuation of the property.” The court then adoptedMs. Willis’ estimate regarding thefair market value of the parties’ home. On appeal, Mr. Collins argues that the tr

ial court’s valua

tion of this proper

ty was in error. We disagree. The trial court was called upon to makea factual deter mination that nece

ssarily required

the court to

evaluate the credibility

of witnesses. The court had an opportunity to observe the manner and demeanor of the witnesses as they testified and thus was in the best position to judge their credibility. Under the Tennessee Rules of Appellate proced ure, f indings of fact made by a trial court are entitled to a presumption of correctness and must be upheld u

nless they are co

ntrary to the preponderance

of the evidence. See T.R.A.P. 13(d). When anissue hinges on witness credibility, however, we may not
reverse a trial court’s factual findings unless, other than the witnesses’ ow

n testimony, there

is clear andconvincing evidence in therecord to the contrary. See Thompson v. Creswell Indus. Supply, Inc. , 936 S.W.2d 955, 957 (Tenn. App. 1996)(quoting Tennessee Valley K aolin Corp. v. Perry , 526 S.W.2d 488, 490 (Tenn. App. 1974)). In the instant case, Mr. Collins failed to produce an appraisal
or any other evidence establishing that the fair market

value of the parties’ home was $144,500.00. Thus, we find no error with respect to the trial court’s valuation of this piece of property.
Distribution of Marital P ropertyThe trial court is authorized to makean equitable distribution of the parties’ marital property. See Tenn. Code Ann. § 36 -4-121(a)(1) ( 1996). Although the distribution must b

e equitable, the court is not required to divide the parties’ marital property equally. See Cohen v. Cohen , 937 S.W.2d 823, 832 ( Tenn. 1996); Watters v. Watters , 959 S.W.2d 585, 591 (Tenn. App. 1997); Bookout v. Bookout , 954 S.W.2d 730, 732 (Tenn. App. 1997). Additionally, we note that trial courts are afforded a great deal of discretion when dividing property upon divorce. See Fisher
v. Fisher , 648 S.W.2d 244, 246 (Tenn. 1983); Bookout , 954 S.W.2d at 732; Wade v. Wade , 897 S.W.2d 702, 715 (Tenn. Ap p. 1994); Koch v. Koch , 874 S.W.2d 571, 579 (Te nn. App. 1993); Loyd
v. Loyd , 860 S.W.2d 409, 411 (Tenn. App. 1993). Consistent with this general rule, the distribution of marital property made by the trial court in the instant case is entitled to a presumption of correctness

and may not be reversed unless it is contrary to the preponderance of the evidence. See Wade , 897 S.W.2d at 715; Loyd , 860 S.W.2d at 411; Barnhill v. Barnhill , 826 S.W.2d 443, 450 (Tenn. App. 1991); T.R.A.P. 13(d).

On app eal, Mr. Co llins contends that the trial court failed to equitably divide the partie s’ marital property . Specifically, Mr . Collins argues tha

t, to the extent tha

t these assets increased in value during the marriage, he is entitled to a shar

e of the parties’ home and Ms. Willis’ 401(k) retirement acc

ount. In dete

rmini ng whether the tr

ial court equitab

ly divided the part

ies’ marital property, we must first consider whether the increased value of the home and the 401(k) account qualify as marital property. The term “marital property” is defined

by section 36-4-121 as follows:

“Marital property” means all real and person al property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and ownedby either

or both spouses as of the date of filing of a complaint for divorce, excep t i n the case of fra udulent conveyan

ce in anticipation of filing, andincluding any property to which a right was acquired up to the date of

the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date. “Marital property” includes income from, and a ny increase in value during the marriag e of, property de termined to be sep

arate property in accordance with subdivision (b)(2) if each party substantially

contributed to its preservation and appreciation and

the value of vested pension

, retirement or ot

her fringe bene

fit rights accrued during the period of the marriage.Tenn. Code Ann. § 36-4-121 (b)(1)(A), (B) (1996). It is undisputed that, during the marriage, Mr.

Collins u sed his skill s as a general contractor to make major repairs to the parties’ home that sig nificantly

increased its value. It is clear, then, that Mr. Collins substantially contributed t o th e preservationand appreciation of the parties’ home. Consequently, anyincrease in the value of the homethat occurred du

ring the marriage

must be classi

fied as marital proper

ty. Additionally, it is undisputed that the value of M s. Willis’ 401(k) r

etirement acco

unt increased by

approximately $10,500.00 during the parties’ marriage. Pension benefits accrued during marriage qual ify as marital prop erty, regardless of whether the non-employee spouse directly contributed to the increase in value of the employee spouse’s pension. See Kendrick v. Kendrick , 902 S.W.2d 918, 926 (Tenn. App. 1994). See also Cohen , 937 S.W.2d at 830; Wilson v. Moore , 929 S.W.2d 367, 374 (Tenn. App. 1996); Batson v. Batson , 769 S.W.2d 849, 856 -57 (Tenn. App. 19 88). Thus, the tria l court properly clas sified the increased va lue of the house a

nd the 401(k) acc

ount as marital pro

pertysubject to distribution.

We next consider whe ther the trial cou

rt’s distribution of

marital p

roperty wa s equitable under the circumstances of the case at bar. M r. Collins’ argume nt assumes that he is entitled to an equitable share of each individu al p iece of marital property. However, we have previ ously held that a court’s distribution of property upon divorce is not rendered ineq uitabl e simply because both par

ties did not receiv

e a share of ea

ch piece of mari

ta l property. See Brown
v. Brown , 913 S.W.2d 163, 168 (Tenn. App. 1994) ; Thompson v. Thompson , 797 S.W.2d 599, 604 (Tenn. App. 1990). Rather, the equity or inequity of the distribution is determined by examining the f inal r esults of the court’s ruling. See Watters , 959 S.W.2d at 591; Bookout , 954 S.W.2d at 732; Wade , 897 S.W.2d at 717; Thompson , 797 S.W.2d at 604. I n this case, the net value of the marital property recei

ved by Mr. Collins is

$10,800.00. The net value of the marital property received by Ms. Willis, however, is only $9,600.00. Therefore, we reject Mr. Col lins’ contention that the court’s distribution of marital property was inequitable.
Frivolous Appeal
Finally, Ms. Willis conte nds th at Mr. Collins’ appe al is frivolous and

that, consequently, Mr. Collins should be require d to p ay the attorney f ees that she has in

curred indefending the appeal. Appellate courts are authorized by section 27-1-122 of the Tennessee Code Annotatedto award damages against an appellant whose appeal is frivolous or taken solely for delay. See Tenn. Code Ann. § 27 -1-122 (1980). Th e underlyin

g purpose of this statute is to discourage groundless

appeals and to re

dress the harm imposed upon harassed appellees. See Davis v. Gulf Ins. Group , 546 S.W.2d 583, 586 (Tenn. 1977). The statute must not be interpreted, however, in such
a wa y that it discourages legitimate appeals. See id. This Court has previously stated t hat a frivolous appeal is one that is devoid of merit and has little prospect of success. See IndustrialDev. Bd. v. Hancock , 901 S.W.2d 38 2, 385 (Ten n. App. 1995). Although Mr. Collins’ appeal was ultimately

unsuccessful, wecannot say that it was groundless or devoid of merit. Additionally, there is no indication that Mr. Collins appe aled the ruling of

the trial court in o

rder to harass Ms
. Willis
or to cause undue delay. We thus c onclude that Mr. Collins’ appeal is not frivolous within the meaning of sectio

n 27-1-122. Acco

rdingly, we deny Ms . Willis’ request f or attorney fee

s.

Conclusion

Basedon the foregoing,

the ruling of the tr

ial c ourt is i n all respects affirmed. Additionally, we find that Ms. Willis is not entitled to rec

over attorney fe

es incurred in

defending Mr. C ollins’ appeal. Costs on appeal are taxed to Mr. Collins, for which execution may i ssue i f necessary.

____________________________________ FARMER, J.

______________________________ CRAWFORD, P.J., W.S. ( Concurs)

______________________________ LILLARD, J. (Conc

urs)